§ 860. Deduction for deficiency dividends
(a)
General rule
If a determination with respect to any qualified investment entity results in any adjustment for any taxable year, a deduction shall be allowed to such entity for the amount of deficiency dividends for purposes of determining the deduction for dividends paid (for purposes of section
852 or
857, whichever applies) for such year.
(b)
Qualified investment entity defined
For purposes of this section, the term “qualified investment entity” means—
(c)
Rules for application of section
(1)
Interest and additions to tax determined with respect to the amount of deficiency dividend deduction allowed
For purposes of determining interest, additions to tax, and additional amounts—
(A)
the tax imposed by this chapter (after taking into account the deduction allowed by subsection (a)) on the qualified investment entity for the taxable year with respect to which the determination is made shall be deemed to be increased by an amount equal to the deduction allowed by subsection (a) with respect to such taxable year,
(2)
Credit or refund
If the allowance of a deficiency dividend deduction results in an overpayment of tax for any taxable year, credit or refund with respect to such overpayment shall be made as if on the date of the determination 2 years remained before the expiration of the period of limitations on the filing of claim for refund for the taxable year to which the overpayment relates.
(d)
Adjustment
For purposes of this section—
(1)
Adjustment in the case of regulated investment company
In the case of any regulated investment company, the term “adjustment” means—
(A)
any increase in the investment company taxable income of the regulated investment company (determined without regard to the deduction for dividends paid (as defined in section
561)),
(B)
any increase in the amount of the excess described in section
852
(b)(3)(A) (relating to the excess of the net capital gain over the deduction for capital gain dividends paid), and
(C)
any decrease in the deduction for dividends paid (as defined in section
561) determined without regard to capital gains dividends.
(2)
Adjustment in the case of real estate investment trust
In the case of any real estate investment trust, the term “adjustment” means—
(A)
any increase in the sum of—
(i)
the real estate investment trust taxable income of the real estate investment trust (determined without regard to the deduction for dividends paid (as defined in section
561) and by excluding any net capital gain), and
(B)
any increase in the amount of the excess described in section
857
(b)(3)(A)(ii) (relating to the excess of the net capital gain over the deduction for capital gains dividends paid), and
(C)
any decrease in the deduction for dividends paid (as defined in section
561) determined without regard to capital gains dividends.
(e)
Determination
For purposes of this section, the term “determination” means—
(1)
a decision by the Tax Court, or a judgment, decree, or other order by any court of competent jurisdiction, which has become final;
(f)
Deficiency dividends
(1)
Definition
For purposes of this section, the term “deficiency dividends” means a distribution of property made by the qualified investment entity on or after the date of the determination and before filing claim under subsection (g), which would have been includible in the computation of the deduction for dividends paid under section
561 for the taxable year with respect to which the liability for tax resulting from the determination exists if distributed during such taxable year. No distribution of property shall be considered as deficiency dividends for purposes of subsection (a) unless distributed within 90 days after the determination, and unless a claim for a deficiency dividend deduction with respect to such distribution is filed pursuant to subsection (g).
(2)
Limitations
(A)
Ordinary dividends
The amount of deficiency dividends (other than deficiency dividends qualifying as capital gain dividends) paid by a qualified investment entity for the taxable year with respect to which the liability for tax resulting from the determination exists shall not exceed the sum of—
(i)
the excess of the amount of increase referred to in subparagraph (A) of paragraph (1) or (2) of subsection (d) (whichever applies) over the amount of any increase in the deduction for dividends paid (computed without regard to capital gain dividends) for such taxable year which results from such determination, and
(ii)
the amount of decreased [1] referred to in subparagraph (C) of paragraph (1) or (2) of subsection (d) (whichever applies).
(B)
Capital gain dividends
The amount of deficiency dividends qualifying as capital gain dividends paid by a qualified investment entity for the taxable year with respect to which the liability for tax resulting from the determination exists shall not exceed the amount by which
(i)
the increase referred to in subparagraph (B) of paragraph (1) or (2) of subsection (d) (whichever applies), exceeds
(ii)
the amount of any dividends paid during such taxable year which are designated or reported (as the case may be) as capital gain dividends after such determination.
(g)
Claim required
No deficiency dividend deduction shall be allowed under subsection (a) unless (under regulations prescribed by the Secretary) claim therefore is filed within 120 days after the date of the determination.
(h)
Suspension of statute of limitations and stay of collection
(1)
Suspension of running of statute
If the qualified investment entity files a claim as provided in subsection (g), the running of the statute of limitations provided in section
6501 on the making of assessments, and the bringing of distraint or a proceeding in court for collection, in respect of the deficiency established by a determination under this section, and all interest, additions to tax, additional amounts, or assessable penalties in respect thereof, shall be suspended for a period of 2 years after the date of the determination.
(2)
Stay of collection
In the case of any deficiency established by a determination under this section—
(A)
the collection of the deficiency, and all interest, additions to tax, additional amounts, and assessable penalties in respect thereof, shall, except in cases of jeopardy, be stayed until the expiration of 120 days after the date of the determination, and
(B)
if claim for a deficiency dividend deduction is filed under subsection (g), the collection of such part of the deficiency as is not reduced by the deduction for deficiency dividends provided in subsection (a) shall be stayed until the date the claim is disallowed (in whole or in part), and if disallowed in part collection shall be made only with respect to the part disallowed.
No distraint or proceeding in court shall be begun for the collection of an amount the collection of which is stayed under subparagraph (A) or (B) during the period for which the collection of such amount is stayed.
(i)
Deduction denied in case of fraud
No deficiency dividend deduction shall be allowed under subsection (a) if the determination contains a finding that any part of any deficiency attributable to an adjustment with respect to the taxable year is due to fraud with intent to evade tax or to willfull [2] failure to file an income tax return within the time prescribed by law or prescribed by the Secretary in pursuance of law.
[1] So in original. Probably should be “decrease”.
[2] So in original. Probably should be “willful”.